1. law, govt and politics

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MARCH 2015 NUMBER 86
LondonAdvocate
London
Advocate
The newsletter of the London Criminal Courts Solicitors’ Association
SAVE
LEGAL
AID
2
Editorial
3
LCCSA Notices and News
4
President’s Report
5
Interview: Steven Bird
7
Not the Global Law Summit
9
Road Traffic Today: Where
Tomorrow?
10
Obituaries
11
Book Review
12
Double Double-Cross
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Editorial
Although the High Court – sadly – ruled against the
association (along with the CLSA and Law Society)
in the recent judicial review proceedings, we can now
look forward to the appeal. It was difficult to feel
beaten as I stood in Old Palace Yard on the afternoon
of Monday 23 February, listening to the array of
inspirational speakers, in the company of others who
had braved the cold during their lunch hour. The
freezing temperatures did nothing to dampen the
passion with which we were repeatedly reminded that
we provide an essential service to those who would
otherwise be failed by a rapidly deteriorating criminal
justice system. May I take this opportunity to thank
everyone who supported the Relay for Rights event
that started in Runnymede two days before the rally
I attended. Oliver Lewis’s article on Not the Global
Law Summit explores it in more detail.
Several hours later, I breathed a sigh of relief as
series 2 of Broadchurch finally ended. ITV’s “event
television series” had not done our cause any favours
with its portrayal of a Crown Court trial, ending, as
far as I can tell, with a wrongful acquittal that was
resolved by the village folk banishing the miscreant to
Sheffield. It seemed a bit harsh on Sheffield but also a
PRESIDENT
Jonathan Black
Butcher Sahota Skelsey Black
3rd Floor Headland House
308-312 Gray’s Inn Road
London WC1X 8DP
DX 37905 Kings Cross
T 020 7837 3456
E [email protected]
PAST PRESIDENT
Nicola Hill
Kingsley Napley
Knights Quarter
14 St John’s Lane
London EC1M 4AJ
DX 22
London/ChanceryLane
T 020 7814 1200
E [email protected]
2
VICE-PRESIDENT
Julian Hayes
Hayes Law
1 Lyric Square
London W6 0NB
T 020 3159 4248
E julian.hayes@
hayeslaw.co.uk
bit medieval. Perhaps the writers were more canny
than I had credited them, recognising that the Magna
Carta is unravelling and the will of the village prevails.
The threat of series 3 lingers. Should the writers
wish to remain on point they could do worse than
read the remainder of this edition. The interview with
Steven Bird not only explains what the longest
serving committee member has been up to but also
touches on the issue of digitalisation – a discussion
which is taken one step further in the article by
Professor Roger Smith, who discusses Martin
Langan’s pioneering road traffic website and
implications of similar models for the future of our
profession.
It is very sad that, in this issue, we are also
mourning two outstandingly talented legal aid
lawyers: Mike Fisher and David McIntosh. Shall we
see their like again? Although a great deal of gloom is
in the air just now, I cannot help but continue to
believe and hope that we shall.
– Mel Stooks
TV Edwards
SECRETARY AND
EDITOR OF THE
ADVOCATE
Melanie Stooks
E melstookssolicitor@
outlook.com
JUNIOR VICEPRESIDENT
Greg Foxsmith
Freelance Advocacy Services
T 07980 846330
E [email protected]
TREASURER
Tim Walker
Sonn Macmillan Walker
12 Widegate Street
London E1 7HP
DX 857 London City
T 020 7377 8889
E [email protected]
LAW REFORM
OFFICER
Tony Meisels
Lewis Nedas & Co
24 Camden High Street
London NW1 0JH
DX 57056 Camden Town
T 020 7387 2032
E [email protected]
TRAINING OFFICER
Diana Payne
Blackfords LLP
Hill House, 1 Mint Walk
Croydon CR0 1EA
DX 2617 Croydon
T 020 8686 6232
E diana.payne@
blackfords.com
COMMISSIONING/SUB
EDITOR
Gwyn Morgan
Max Findlay Associates
T 020 8870 0466
E gwynmorgan@
maxfindlay.com
ADMINISTRATOR
Sandra Dawson
PO Box 6314
London N1 ODL
DX 122249 Upper
Islington
T 020 7837 0069
E [email protected]
LCCSA WEBSITE
www.lccsa.org.uk
MARCH 2015
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LCCSA Notices and News
More news on the website: www.lccsa.org.uk.
Follow us on
Facebook
Twitter
LinkedIn
JUDICIAL REVIEW
The judicial review, brought by the LCCSA and CLSA
alongside the Law Society, challenging the Lord
Chancellor's plan for a two-tier duty solicitor contract,
was not successful. Leave to appeal has been granted.
Members have not only generously given to the cost
of the further proceedings but, via the LCCSA's
“hub”, devised by Jim Meyer, provided evidence to
support an application to extend the injunction
suspending the tender process pending the appeal.
This application was successful.
NOT THE GLOBAL SUMMIT
On 23 February, the LCCSA helped to organise a
demonstration in Old Palace Yard, across the road
from the Houses of Parliament. This demo formed
the climax to the Justice Alliance's march from
Runnymede, coinciding with a “Global Law
Summit”, held in the Queen Elizabeth II conference
centre. At the summit, the government used the
anniversary of the signing of Magna Carta to promote
British business, describing the event as “a unique
opportunity to explore what the future holds for
global business and the rule of law”.
Marchers from Runnymede arrive in Westminster
Aid – Justice just got funny” at the Union Chapel.
A number of comedians, including Stephen K
Amos, Angela Barnes, Alistair Barrie and Kevin
Eldon, entertained a capacity crowd.
PAGES OF PROSECUTION
EVIDENCE
In the recent case of R v Furniss and others, Mr Justice
Haddon-Cave has ruled as follows: “Where ‘cell site’,
telephone and similar material is served by the
Prosecution upon the Defence in digital form, such
material must be included as PPE for Graduated Fee
Purposes, and payment made to Defence advocates
on that basis.”
COMMITTEE MEETINGS
The next two meetings will be held on 9 March and
13 April 2015.
The venue is the offices of Kingsley Napley and
meetings start at 6.30pm. All members are welcome
to attend.
Those addressing the rally included Karl Turner MP.
Maxine Peake, star of the TV drama, Silks, read from the
Magna Carta: “To no-one will we sell, to no-one deny or
delay right or justice”. A delegation then delivered a scroll
bearing these words to the conference centre.
STAND UP FOR LEGAL AID
The demonstration on 23 February was followed with
an evening of comedy, entitled “Stand Up for Legal
MARCH 2015
CONSULTATIONS
During the first two months of 2015, the LCCSA has
responded to several significant consultations. Two of
these were from the Sentencing Council, the first
concerned with offences of robbery and the second
encompassing health and safety, food hygiene and
corporate manslaughter offences. The general
consensus has been that while the Council’s approach
to sentencing cannot be faulted, there has been a
discernibly upwards shift in suggested tariffs.
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The Home Office issued a highly publicised
consultation addressing increasing concerns over the
use of police bail and, in particular, the amount of
time suspects might remain on bail.
Lastly, there was a scoping paper from the Law
Commission on offences against the person, the premise
being that the OAPA 1861 is no longer fit for purpose.
Looking ahead, the CPS is currently consulting on
draft guidance on prosecutors speaking to witnesses at
court. This has a closing date of 16 March and any
comments from members should be addressed to the
Law Reform Officer, Tony Meisels.
way of gaining mandatory CPD points should contact
the Training Officer, Diana Payne.
FOOTBALL
The LCCSA has formed a team to take part in the Legal
Aid Lawyers League. Sadly, the first match was lost. The
association’s opponents withdrew from the second and
third games – which, happily, counts as two wins.
TRAINING
The LCCSA’s 2015 programme of CPD webinars
(listed on the LCCSA website) offers members the
opportunity to learn from a judge, two professors and
some of the most experienced persons in the profession.
The range of webinars include something to interest
everyone, whether newly qualified or experienced:
police station update, sexual offences, extradition,
welfare benefits, Criminal Procedure Rules, corporate
law, criminal law and evidence updates - and many
others, with lecturers such as Professor David Ormerod
of the Law Commission and Professor Ed Cape.
Webinars can be watched live or later, at the
member’s leisure, at work or at home, with each one
providing one and a half hours CPD. Anyone with
further suggestions for this enjoyable and convenient
Back row (L-R): Ronnie Manek, Steven Bird, Greg
Stewart, David Jones, Carl Newman. Front row (L-R)
Joe Latham, Peter Fallen
There was a triumph in the most recent game, on
24 February, when the team beat Doughty Street
chambers by 4 goals to 2.
President’s Report
Writing these reports is like a serialisation: I signed off
in January with the judicial review against dual
contracts pending. The last weeks have once again
been dominated by this litigation and our efforts to
prevent these insidious proposals from being
introduced.
I am acutely aware that our work is largely focused
on issues that affect high street legal aid solicitors and
the fact that not all of our members fall into that
category. The association needs to remain broad and I
hope that those members not directly affected will
understand.These firms have always been the first to
support the association’s events, such as the annual
dinner and autumn conference; and we look forward
to socialising with all members at our summer party
at King’s Place – a new, less formal, version of the
annual dinner, in July.
I am delighted that we have now been granted leave
to appeal the Divisional Court’s decision against our
judicial review application. Having sat through three
days of the JR hearing and endured the wait for
judgment, the association’s officers were notified that
4
the claim had been dismissed on 12 February. During
the six-day embargo period when we could not share
the information, Julian Hayes and I, along with Bill
Waddington and Robin Murray, sought urgent advice
on appeal – which was lodged before the judgment
was made public. When Mr Justice Sales heard our
application for leave and an extension of the stay, he
was presented with evidence of the tendering process
from the profession’s point of view, created via the
48-hour flash hub, thanks to our webmaster, Jim
Meyer. Many thanks to the legal team, whose work
has been tremendous.
The advent of the general election gives us hope
because, after months of discussions, Labour’s front
bench announced their intention to scrap the dual
contract schemes and review any further proposed cuts.
Of course, I do not speak for all members on this
subject, but, despite past encounters, I believe we can
look forward to a better relationship with a Labour
government, if elected, than that with current ministers.
The association was not invited to the government’s
Global Law Summit. This event was a totally
MARCH 2015
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inappropriate way to celebrate the anniversary of the
Magna Carta but ministers don’t get it. Justice
Minister, Shailesh Vara, said during a parliamentary
committee: “If there was an issue with access to
justice, we would not be hosting the Global Law
Summit”. In response, the Justice Alliance walked
from Runnymede to Parliament Square. I joined part
of the walk and spoke at a defiant rally in Old Palace
Yard. Matt Foot and Rhona Friedman were among
those who put many hours into making this event a
success. Thanks to Akhtar Ahmed, Julian Hayes and
Nicola Hill, who worked on logistics for the rally, and
to Greg Foxsmith for completing a hat-trick of events
as compere.
In the meantime, other events have come along:
Leveson’s report, a critical decision on PPE and
matters to do with digital platforms.
I sign off on a cliff-hanger as we await the outcome
of the appeal. Perhaps my next report will be written
in a post-war era when we can start work on the
reconstruction of our shattered system .
– Jon Black
BSB Law
Interview with Steven Bird
Steven is the longest serving member of the LCCSA
committee and has played a vital part in recent campaigns
Q: What is your history with the LCCSA?
A: I was asked to join the committee some time
around 2004. I'm a co-opted member now. Initially, I
worked on police station liaison and, over the years,
I've done a lot of responses to consultations. For a
long time, I have been the representative on the Court
of Appeal User group.
Q: What have you been doing for the LCCSA
since Transforming Legal Aid came out in 2013?
A: The LCCSA committee tends to come to me to
analyse what figures mean and, when the first
consultation came out, the documentation was quite
opaque so I produced a couple of schedules, giving a
comparison of what we're being paid now and what
we would be paid under the proposed schemes. It
showed that, across the board, the deductions were
much more than the 17.5% that the government said
they were. In particular, deductions for police station
work in London were averaging at about 35%.
It's quite interesting that, when it came to the
second consultation, they put forward a London
police station fee which shows an average cut of
about 18%. In some of areas outside London, I
suspect that the analysis was not done and they are
still on a 35% cut. Another point that we made in the
first consultation response was that, when you looked
at the figures, it became really stark just how much
financially you would be losing when cases went to
trial. There was some movement on this, too.
The LCCSA put on a series of talks to the profession
at that time and I helped with some of these, talking
people through what the ramifications were.
In the first judicial review case brought by LCCSA
and CLSA, I gave a witness statement about what the
impact could be for firms of a reasonable size.
MARCH 2015
Q: Why have you never been president of the
LCCSA?
A: I have been asked and I've said, “No”. Being
president has become a full-time job. In the last
decade, almost every year, there’s been some major
development that threatens the profession. The
problem for me is that the structure of my firm does
not allow me the time that is required to devote to the
role. I’m sorry about that but it is just a practical
approach.
Q: Tell me about the Criminal Appeal Lawyers’
Association (CALA)
A: CALA started in about 2002. It has about 30
member firms. The idea is to promote better
representation for those appealing convictions and
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sentences or applying to the CCRC and we organise
conferences to discuss relevant legal issues. I was
treasurer for about ten years and I’ve been chair for
about 18 months.
Q: What is your reaction to the High Court
judgment in the recent JR proceedings?
A: It’s very disappointing. The judgment seems to be
saying that the court shouldn’t interfere with matters of
government policy and that the Lord Chancellor is
entitled to make decisions that will adversely affect access
to justice. He has a duty under LASPO to make sure that
legal representation remains available. I think if he brings
his scheme in, he’s going to have a huge problem meeting
those obligations. It’s obvious that any firm that doesn’t
get a duty contract will find it difficult to survive on an
own-client contract for long. We know that this is going
to cause a problem; we know it’s not been looked at
properly; and yet the court doesn’t seem really to take that
point on. It will be difficult if the Court of Appeal takes
the same approach but there is fight left in the association
and therefore hope.
Q: How optimistic are you for the future of criminal
legal aid in the event of a Labour victory in May?
A: I don’t think anyone can be particularly optimistic
about the future, whatever government gets in. Labour
was in power when this process started, in 2006 with
the Carter proposals, so they don’t have a great history
on it. But I welcome their statement on two-tier and
trust it will be honoured if they win the election.
What we actually need is more funding. We’re
already getting to the point where it is almost
impossible for firms to provide a decent service to
clients. Take police station attendance: what you are
likely to be paid, under the new contract, in London,
is £200. That’s less that what you might pay for a car
service. I do not wish to denigrate car mechanics but
there is quite a lot of work and education in
becoming a lawyer.
Q: What are the wider implications for criminal
justice as a whole, should the present policies be
followed through?
A: My real fear is for the future of criminal work.
There are some good young solicitors around but
there aren’t as many as there used to be. They come
out of university nowadays with substantial debts and
have to consider their earning potential. You can get a
training contract in the City that will probably pay
you more than you would be getting as a ten-year
qualified legal aid lawyer.
Q: What is your reaction to Leveson’s proposals?
A: I think he is being slightly optimistic in certain
respects. I’m actually very much in favour of digital
working. I prefer to work from digital files than paper.
6
But it’s difficult when prisons like Belmarsh won’t allow
you to take your laptop because it’s got a webcam built
in. The idea of having more parts of a case dealt with
without the necessity for a hearing is good. But the CPS
is going to have to be much more organised and have
people made responsible for cases at a much earlier
stage. Where is the money coming from for that?
Q: How geared up is your firm for the technical
changes which are taking place?
A: We’ve all got CJSM linked in to our Outlook;
every bit of paper that comes in is scanned. Ironically,
we run some files that are digital only until the LAA
want to have a look at them for an audit, at which
point we’ve got to print everything out. I don’t think
it’s linked to the fact that I gave a witness statement in
the first JR and have been fairly outspoken about Mr
Grayling, but we have had two legal aid audits since
the consultation process started in 2013.
Q: Are you dismayed by the current poor
relationship between the two branches of the legal
profession?
A: Yes. I wasn’t party to the meetings that went on
but my understanding is that there was an agreement
whereby each side would not negotiate separately
with government. It’s the fact that this agreement was
broken, more than the fact that they came to a deal,
that is most upsetting.
The criminal justice system needs a good solid
independent Bar; for solicitors, it is really important
that we have that choice for our client. I’m not sure
that the people at the top end of the Bar understand
the consequences of what we’re facing. If the
solicitors’ profession is reduced to a much smaller
number of larger firms, working at a much lower rate,
while advocacy is not affected by the cuts, then it does
not take a genius to work out that most firms will be
looking to bring the advocacy in-house.
Q: Take me through your communications with
your MP, Mr Grayling
A: I wrote a long letter to him, just after the first
consultation came out, and this found its way on to
Twitter. He did not offer me the meeting I had asked
for. But, because he’s my MP, I went along to his
MP’s surgery, with a couple of colleagues from
another firm. We had about half an hour. I was trying
to get across that we were ahead of schedule on the
savings they wanted to make and that this had not
been factored in by the government. My impression
was that he did not really have a mastery of the
figures. To be fair, this was back in May, 2013 and he
did not have any advisors with him. I got the
impression that he was an ambitious politician and
that this was purely about saving money for
government. He does not believe us when we say
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these cuts will be a disaster for the criminal justice
system – or he doesn’t care.
Q: Tell me about your firm, Birds Solicitors
A: I set the firm up in October 2000. My old firm,
Simons Muirhead & Burton, were based in Soho and
I’d moved the criminal department down to
Wandsworth in 1998. Then I decided I would like to
set up my own practice. We started with about six of
us and now we have 22 legally qualified fee-earners.
We do criminal work, including prison law, anything
from the most minor offence to VHCC cases and
murders. We were on the now defunct serious fraud
panel. We also do a lot of appeal work. We have a
reputation for it and get about ten inquiries every week,
probably taking on one a fortnight. We’ve had quite a
few convictions overturned over the years, a number
through the CCRC, including one which was
overturned on the negligence of the advocate at trial.
Q: And I believe you appear in Who’s Who
A: I am not entirely sure why they would choose me for
inclusion but apparently you are selected by a panel,
which considers you to be a leader in your field. It is a
bit quirky – I am nestling between Beckham and Blair!
Q: Tell me about your background
A: I was brought up in Romford and went to a
comprehensive school. I went to the University of
Birmingham, read Law with French and spent a year
in Limoges in France, studying French law. After that,
I went to Guildford Law College and then back to
Birmingham to do a Masters degree. I joined Simons
Muirhead & Burton as an articled clerk and was taken
on by them in 1990 when I qualified, being made a
salaried partner in 1993.
I studied Law at university because it sounded
interesting. No one in my family had been to
university before. I got really interested in criminal
law. Although I did some summer placements in City
firms, I did not like what I saw there.
Q: I understand you have continued your interest
in the academic side of criminal law
A: Yes: I wrote the Police Station Adviser’s Index, with
Brian Spiro, now in its fourth edition. I’ve written a
chapter in Taylor on Criminal Appeals and a chapter in
Michael Naughton’s book on the Criminal Cases Review
Commission. I’m writing a chapter on confiscation for a
new book on drugs law at the moment. I write articles for
various publications, with updates for Lexis Nexis.
I have lectured at Doughty Street chambers, at Kingsley
Napley and for the LCCSA. I spoke at a Justice human
rights course a few years ago and I shall be speaking to the
University of Sussex Innocence Project at a seminar later
this month. I’ve spoken at CALA conferences a number of
times and I’ve done a couple of podcasts for CPDcast.
Q: Do you have interests outside the law?
A: Apart from my family (I have four children), there
is football. I went to my first Arsenal game as a
present for my seventh birthday. Now I share a season
ticket and so I go about eight or nine times a year.
I play every Monday night (except when I’m at the
LCCSA) for a group of veteran players near my home.
When I was in France, I played for the University of
Limoges First Eleven and for a French team who were in
one of the lower national divisions. I’ve played for the
London Legal League and I used to moonlight for a
couple of City firms. But then I broke my collar bone
twice and my wife decided that I should stop doing it so
seriously. I’m playing for the LCCSA vets team. We got
hammered in our first match but then defeated Doughty
Street – a triumph of experience over youth.
Not the Global Law Summit
As lawyers and business leaders attended the controversial
Global Law Summit, marking the not quite 800th
anniversary of Magna Carta, the Justice Alliance held its
own alternative events, with a Relay for Rights starting at
Runnymede culminating in a protest outside Parliament.
When Lord Chancellor, Chris Grayling, finished licking
the envelopes containing invitations to speak at the
Global Law Summit we can feel reasonably certain that
there were none addressed to legal aid solicitors. Plenty of
invitations were set aside, though, for large city firms,
posh chambers, corporations and financial institutions.
Jonathan Black, President of the LCCSA wasn’t too
surprised that his postie never delivered an invitation to
the £1750 per ticket event. “This was nothing less than a
business fair, with Grayling using and exploiting the
MARCH 2015
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anniversary of Magna Carta to sell UK legal services. Even
Dominic Grieve called the event a ‘legal Davos’. That’s
why the naughty children like us weren’t invited,” he says.
Black is highly critical of Grayling and the Prime
Minister. “It’s all extremely rich of Grayling given his attack
on legal aid, the probation service, prisons, and the
contempt he’s shown for justice system.” Meanwhile David
Cameron, who penned the foreword to the Summit’s
glossy brochure, hosted the world’s justice ministers at
Downing Street, while pretending the disaster in the justice
system on his own doorstep wasn’t happening, Black says.
Magna Carta gone missing
Justice Alliance campaigner Matt Foot of Birnberg
Peirce has also been flicking through the brochure.
“Nowhere in their literature or brochure do they
mention what Magna Carta actually says: ‘To no one
will we sell, to no one deny or delay right or justice.’ I
think there’s a good reason for that: the summit had
nothing to do with Magna Carta and everything to do
with promoting free enterprise and big business.”
He points out the double standards where the
government has been busy cutting access to justice. “You
can’t get a lawyer for employment tribunal cases now, the
work in family and housing has been halved, access to
courts has been taken away and the quality of criminal
defence is going to be decimated under the proposed dual
contract and cuts. It is just rank hypocrisy calling this
event anything to do with Magna Carta.”
Foot is sceptical about the guest list too. “I see no
connection between say Vodafone or BAE Systems and
Magna Carta and access to justice. BAE deals armaments
around the world, I really don’t understand why they were
invited to a celebration of Magna Carta,” he says.
Other invitations and attendees at the event also
proved contentious. Liberty director Shami Chakrabarti
pulled out, saying “My place is with the protestors.” Late
invite shadow justice secretary Sadiq Khan declined his
invitation, “A better way to celebrate Magna Carta’s
birthday is defending the rule of law,” he said. Key note
speaker Lord Green, late of HSBC, withdrew late in the
day for different reasons.
Chair of the CBA, Tony Cross QC, spoke at the event.
Many are critical of his decision to attend. “By going there,
we are tacitly endorsing what Grayling is doing to the
criminal justice system,” said John Cooper QC. Cross
disagreed and insisted on delivering his message from the
platform. “Turn back from your intended course,” he told
the government. Otherwise “you not only risk denying
access to justice but also risk turning the Magna Carta into
a parchment worthy only of note to historians, instead of
the foundation of our freedoms of which we are so proud.”
Timing
The summit was beset with other problems. Some have
raised eyebrows at the timing of the event, noting that the
8
actual 800 anniversary of Magna Carta falls a few weeks
after the general election in May. “The government is
rewriting historical dates to make political capital out of a
celebration of the rule of law,” says Sarah Forshaw QC.
Others have been critical of the event too. Peter Oborne,
newly departed Telegraph writer, eviscerated the
government for holding the summit while simultaneously
considering a withdrawal from the European Convention
on Human Rights and undermining the rule of law. “Mr
Cameron’s government has launched a systematic attack
on the legal aid system which gives poor people access to
the justice system. There has always been a two-tier system
of justice in Britain, one for the poor and one for those
who can afford expensive private lawyers. The
government changes have widened this divide, and run
flatly contrary to Magna Carta,” writes Oborne.
Former DPP turned prospective parliamentary
candidate Keir Starmer agrees. “The best way to celebrate
Magna Carta is to defend and protect human rights in the
21st Century. For a government hell bent on repealing the
Human Rights Act, supporting this Global Law Summit
was an act of supreme irony.”
Protests
Rhona Friedman, Bindmans solicitor and co-founder of
The Justice Alliance, explains how the Not The Global
Law Summit came about. “We wanted to point out the
hypocrisy of the Ministry of Justice co-hosting a global
law summit when they are curtailing the right to hold
the state to account for unlawful decision making.”
Friedman, who helped to coordinate the Not The
Global Law Summit, is passionate about the
importance of defending the principles set out in
Magna Carta, particularly for the vulnerable who are
now being denied legal aid and access to justice and is
contemptuous of Grayling’s summit, describing it as
“a backslapping corporate jamboree with very little to
do with the values of Magna Carta or the rule of law.”
The Relay For Rights began two days before the
Global Law Summit with an event at Runnymede,
where Magna Carta was signed, before supporters set
off for London along the Thames path. Early next
morning they were off again, as far as Putney, and on
the Monday resumed from St Mary’s Church, scene of
the historically significant Putney debates, arriving at
Westminster for a rally at which Silks actress Maxine
Peake read from Magna Carta itself.
For Jonathan Black, the rally sent an important message
to the people at the summit. “The bottom line is we get
cuts from the Lord Chancellor while the commercial law
sector were given a party which we, the naughty children,
weren’t invited to and were told to mind our manners and
be quiet,” he says. “Well, we weren’t quiet: we came
downstairs and made a lot of noise!”
– Oliver Lewis
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Road Traffic Today: Where Tomorrow?
Martin Langan is a solicitor based near Chichester.
He is not a criminal practitioner but he has, almost as
a demonstration, set up a pioneering website. Look
up roadtrafficrepresentation.co.uk if you have a
moment. Bear in mind that the interest of the site is
not only what it actually delivers but what it heralds.
In my view, and fortified by research just published by
the Legal Education Foundation and available on its
site (thelef.org), this is one of a number around the
world that indicates a future direction of legal services
for those on low incomes. It gives a lot of free
information in response to a series of interactive
questions and then kicks in to provide automated
representation by counsel where needed. It behoves
all of us to consider the implications.
Changed lives
The context in which Mr Langan has developed his
site is sweeping technological change. You will know
this in your personal life. You are likely to have a
smart phone; be familiar with living in a wi-fi world
where you can work from anywhere; and be
increasingly dependent on the internet for
information for work, family and pleasure. Some of
you won’t even have a physical office. If you do, it is
likely that you are close to going paperless. The
internet is increasingly changing our lives as
professional lawyers. It seems inherently unlikely that
it will not do something similar for at least some of
our clients.
To be fair, it may well be that criminal specialists are
relatively sheltered from technological innovation, at
least as it affects what they actually do rather than
how they do it. Mercifully, and thanks to centuries of
the common law and the recent accretion of human
rights, those accused of a crime are entitled to a public
hearing - something that inhibits wholesale
transformation of the legal process. As do the
constraints imposed on those of your clients who,
regrettably and - hopefully, only temporarily - may be
in police custody. Though, even there, video begins to
impose itself. But, look around at sites like that of Cooperative Legal Services or Quality Solicitors. They
are offering a series of packages for processes like
divorce which incorporate free information on the
web; electronic communication between lawyer and
client; automated document assembly and
“unbundled services” with the client undertaking a
large amount of the routine work.
The civil lawyers are sniffing out an audience that
future guru Richard Susskind has called the “latent
legal market” – those with limited amounts of money
but able to afford services if they are cheap enough.
MARCH 2015
They would be well illustrated by those who would
once have been entitled to civil legal aid on payment
of a contribution. A range of models are being
explored that include virtual legal practices based
entirely online; the creation of online communities of
people with shared issues with links to lawyer firms;
and various forms of coaching and support short of
full representation. Such innovation is to be
welcomed, provided it stays the right side of
professional requirements to act in one’s client’s best
interests and to be transparent about the relationship.
Legal aid
But, there is a dark side. Government departments
around the world increasingly argue - generally
without much detail - that traditional legal aid for face
to face representation can be wound up because the
websites will take over. This argument appears in no
less than all three consultation papers on access to
justice currently circulating in Northern Ireland. In
them all, it takes no more than a throwaway
paragraph or two.
So, lawyers who have historically made a living
from legal aid are going to find some protected niche
(and don’t think they will survive for long) or reduce
prices. Technology provides one way of potentially
addressing the latter. And, around the world, you can
see some interesting attempts. The LawAssist website
(funded by the equivalent of legal aid) in New South
Wales has videos on how to represent yourself. Court
sites in the US do the same. You might, for example,
develop videos for your clients to cover advice that
you give repetitively. It’s several decades since I
actually acted for anyone but I bet you are still
explaining certain things about court appearances: the
value of a suit and tie; the avoidance of chewing gum;
the importance of standing up straight; and briefing
on court procedures. You could have all this on a
video you send to clients or even post it on your
website as a loss leader. Smart phone penetration is
almost100 per cent for those aged 18 to 24 - your key
demographic.
There will, in truth, be more possibilities in civil
proceedings. Two jurisdictions, the Netherlands and
British Columbia, are moving to integrated webbased systems that take a user through from diagnosis
to court decision - the first in family cases and the
latter in small claims. Similar ideas have recently been
proposed - and welcomed by the Master of the Rolls by the Civil Justice Council in the UK. But, there are
some lessons for all legal aid practitioners. The first is
the need for imagination - you need to play with ideas
of how elements of what you do now could be
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transformed by using technology. Second, spend a bit
of time looking at what’s around (begin with the
report on the LEF site). Third, politically, there is an
opportunity here for lawyers to graft their role onto
advice for all citizens which might help to integrate
the funding of lawyers with that of lay advice. Finally
and pretty obviously, the net will not work for
everyone. Probably only half of those on low incomes
can make effective use of it for cultural, skills,
educational or physical access reasons. We need to
engage with the argument about what is and is not
possible: we use the net but it needs to be integrated
with individual assistance.
We have to recognise that solicitors like Martin
Langan are outriders of an inescapable future. Ignore
them at your peril.
– Professor Roger Smith
Obituaries
Michael Fisher
30 October 1946 - 7 January 2015
Photograph by Philippa Langley
Mike Fisher was shrewd, humorous, reflective, but,
most of all, modest – a rare quality in a lawyer. He
never talked of his achievements; but there are not
many who can compare with his contribution to
criminal legal defence.
Mike co-founded Fisher Meredith Solicitors and then
Christian Fisher Solicitors, where he tutored and
inspired a generation to follow. He was, fundamentally,
a lawyer for the underdog who took on the unpopular
cases, including the Balcombe Street siege, the Brighton
pub bombing, and the Guildford Four.
More importantly, Mike established new law that
could be used by others to help protect the individual
against the state. Amongst the collection of moving
speeches at his funeral, the most poignant was that of
his client and friend, Nick Mullin. Mullin’s conviction
was quashed in 1999, as the Court of Appeal
condemned the abuse of executive power saying, “The
British authorities initiated and subsequently assisted in
and procured the deportation of the defendant by
unlawful means, in circumstances in which there were
specific extradition facilities between this country and
Zimbabwe. In so acting, they were not only
10
encouraging unlawful conduct in Zimbabwe but were
also acting in breach of public international law.”
My happiest work memory of Mike was coming out
of the Court of Appeal with the triumphant leader of
the Public and Commercial Services Union, Mark
Serwotka, to a cheering crowd, as the Union had
thwarted a legal attempt by a maverick group which
had tried to seize the leadership. Mike
characteristically remained in the court in the
background. My favourite personal memory was us
both admiring, at close quarters, the unexpected
demolition of John Terry by Emile Heskey at
Stamford Bridge, in a Chelsea-Liverpool game.
Fortunately, I was able to see Mike on Boxing Day,
where, along with his nephew Christopher and
Marina Knox, we chatted for hours. In the knowledge
he had terminal cancer, and despite personal
difficulties in his life, he was completely content, had
no ill-feeling to anyone, and was at ease with himself.
We had a wonderful argument, a philosophical debate
as to whether we are predestined. He relied on several
philosophers, me just on Marx. He then told us a
funny poem about his health, which I said confirmed
we are not predestined. He didn’t agree. However, I
now get the last word: there was nothing predestined
about Mike Fisher. He was also a very proud dad, and
our thoughts are with his children Eva and Maxim,
and their mum Florence.
– Matt Foot
Birnberg Peirce & Partners
David McIntosh
13 October 1962 - 3 February 2015
David McIntosh died suddenly, whilst preparing for
his latest Old Bailey trial, at his home on his beloved
boat at Roydon Marina. He was 52.
David was born in Birmingham but, as a boy,
developed a love of the countryside, having moved to
Gloucestershire and, later, Dorset. He enjoyed horseriding and, in particular, show-jumping. He left for
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London in 1981, where he studied archaeology at UCL
and, after graduation, worked as a bicycle courier and
then as a housing officer for Camden Council.
It was during his time at Camden that he decided to
pursue a career in the law, and he began attending the
College of Law in London in 1987. He went on to
qualify as a solicitor at Edward Fail, Bradshaw
&Waterson in East London and later joined MarcusBarnett in Islington, as a partner. It would be fair to say
that David preferred a less structured work life and he
soon headed to the Essex countryside to work as a
freelance consultant with Buxton Ryan and Co. Here,
anyone seeking to instruct David of an afternoon might
find him out walking his beloved dog, Missy.
David developed a love of advocacy; and he was
good at it. He attained his higher rights and returned
to London, joining Evans Bissett in Kentish Town in
2008 as a consultant and in-house advocate.
Tentatively at first, he developed his higher court
advocacy skills; but he quickly progressed to
undertake the firm’s more complex cases.
David’s analytical attention to detail and calm yet
passionate advocacy skills earned him the acclaim of
colleagues and fellow advocates, members of the Bar
and judges alike. He had made the difficult transition
from the magistrates’ court to the Crown Court with
seemingly effortless ease, and achieved some notable
successes. One can only imagine that greater success
would have followed.
Yet David always stayed true to his roots. Despite
enjoying the bright lights of the Crown Court and the
buzz of a “not guilty” verdict, he never became aloof or
distant from his clients. Instead, he found a balance
which enabled him both to engage with them and to
remain sufficiently focused to achieve the best possible
results - as, perhaps, only a good solicitor-advocate can.
David was a man of fierce intelligence, sharp wit
and enormous compassion, with an unconventional
outlook on life. Admired, respected and loved by his
colleagues, he was one of a kind. The profession has
lost one of its best and we have lost a truly good
friend. David, you are sadly missed.
– Pip Evans and Claire Bissett
Evans Bissett
Book Review
Criminal judicial review
A Practitioner’s Guide to Judicial Review in the
Criminal Justice System and Related Areas
General Editor Piers con Berg (Hart £65)
Perhaps surprisingly, this is the first book exclusively
devoted to the topic of criminal judicial review. Do we
need one? Having read this, I think the answer is: yes.
Those of us who practise exclusively in criminal law
know of the existence of JR and associated remedies, but
not necessarily the range of areas that public law can
cover, or how to bring a review properly where
appropriate. In other words, you need to spot the point,
to take the point. LCCSA members may therefore be
interested in this book, which brings together areas of
both criminal and public law and presents them in a
guide which should equip any practitioner to access the
relevant materials and prepare the relevant arguments.
The book is thematically arranged, with topics
tackled by different authors, both solicitors and
counsel (many of these from 36 Bedford Row),
setting out the key principles and identifying grounds
MARCH 2015
arising from the conduct of (amongst others) the
police, the courts and prisons.
Judicial Review allows claims to be made against
any public authority which has acted unlawfully,
including the IPPC or even the LAA. There have been
at least eight successful JRs against the Ministry of
Justice under Grayling’s tenure.
An over-riding concept in criminal judicial review is
“serious abuse of power”, and the scope includes police
investigations and prosecutorial decisions, as well as
oversight of the courts. These topics are ably covered in
this book, with coverage of the mechanisms for
bringing JR – forms, procedures and timetables – and
the availability of legal aid and the way in which cases
can be billed (including costs orders).
Commendably, the book does not steer clear of
controversy, suggesting for example possible challenges
following the recent appellate decision in the case of
Davis. It has a clear and simple style, is easy to use and
will meet the needs of the practitioner. In my view it
will become the “go-to” book for judicial review.
– Greg Foxsmith
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Double Double-Crossed
So: it seems Tony Cross QC, Chairman of the CBA,
came through after all.
Against advice from all sides, he took part in the
government’s Global Law Summit, but this is what
he said:
“Our Lord Chancellor takes an oath of allegiance;
he swears that he will protect the rule of law. This
government is the first in history to have appointed a
non-lawyer as Lord Chancellor. Historically, that role
has been filled generally by senior lawyers not
politicians who were less politically ambitious.”
He went on to say: “It is rather ironic that while we
sit here in plush surroundings, if we scratch beneath
the surface of our criminal justice system, there is a
significant number of our citizens being denied access
to justice.”
“Those firms,” Cross continued, “once disappeared,
will not be able to provide work for the young lawyer.
When they are gone, where will the future judges of
the tomorrow come from?”
He then attacked the government’s plans for
reforms to legal aid: “The first port of call for anyone
involved in criminal matters is the trusted high street
solicitor. Our government plans to replace those
1,700 firms with just 527 firms. Justice will be
provided by conglomerates and supermarkets of
lawyers. It will lead to injustice for victims and
defendants alike.”
Over the coming days and weeks, many questions
will swirl about, no doubt punctuated by claim and
counterclaim. Did Mr Cross always intend to
embarrass the Lord Chancellor over his own canapés?
If so, why the “cloak and dagger” approach? Or was
Mr Cross shamed into making this attack by almost
every criminal lawyer in the land? If so, did the
“Trojan Horse” tactic actually work, and was the
publicity really worth it? Would it have been better
(and more unifying) if Mr Cross had simply declined
his invitation and spoken outside the event with
everybody else who knows what the Magna Carta is
actually about?
During the ensuing debate, it is likely that few of
the diehards will change their minds either about Mr
Cross’s tactics or about which side of the fence they
are on. It is only a shame that there is a fence at all.
For me, the more interesting question is whether
Mr Cross would have been barred entry if he had
openly declared his intention throughout – ie by
For anyone who wasn’t outside the Global Law Summit
but now wishes they had been there, you can still get the Tshirt for £10. Contact [email protected]
accepting the invitation but being clear about
bringing his wrecking ball along. Would the Ministry
of Justice have physically barred him purely to avoid
political damage? Really? At an event celebrating the
wonders of freedom of speech in the modern world?
Now, I am not a PR expert but I would have thought
that would have made a better newspaper article and
photo opportunity.
“Lord Chancellor bars critical lawyer from Global
Summit on legal rights.” Photo caption: Leading silk
being physically restrained by several G4S staff,
preferably with tattoos.
In recent legal news, an analogy arises. I hear on
good authority that a police-instructed interpreter
was recently refused entry to Leicester magistrates’
court. In fairness, this was not on the basis of
something he said. Rather, it was on the basis that he
was drunk. Yes, an interpreter too drunk to be
allowed into the building.
It is not yet clear which company instructed this
interpreter, but it is clear that he was out-sauced.
– Ali Parker
Saunders Law
Save Legal Aid
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MARCH 2015